MP Ginny Andersen with the members’ bill
MP Ginny Andersen with the members’ bill

SocietySeptember 23, 2018

Miscarriage can be a bereavement, and we must reflect that in employment law

MP Ginny Andersen with the members’ bill
MP Ginny Andersen with the members’ bill

New Zealand needs Ginny Anderson’s miscarriage amendment – it’s a subject close to my heart, writes Alex Penk

A bill to provide bereavement leave for miscarriages will soon face its first vote in parliament. It’s a subject that’s close to my heart. I can vividly remember the day, nearly six years ago, when I drove to work on an otherwise ordinary morning, sat in the car park staring at the dashboard for around 10 minutes, then drove away again without getting out. Less than 24 hours earlier I had been at home, sobbing uncontrollably, after a radiographer had kindly but matter-of-factly told us that there was no heartbeat in my wife’s womb, and the crushing grief had begun to descend.

It seems ridiculous to me now that I could possibly have thought about going back to work the next day, but I had no idea how I was “supposed: to respond. That’s why I’ve been grateful for the courage of others who have shared their stories like this one on The Spinoff, and it’s why I’m grateful for this bill.

Our miscarriage happened early, around the seven or eight week mark. We already had three children and no experience of anything like this. I’d barely heard anyone even mention miscarriage, so I was little short of amazed when we shared our story with others and began to hear so many stories in return. Since then, I’ve learned how common miscarriage is, often estimated to occur in 25 percent of pregnancies and affecting nearly a third of New Zealand women who have ever been pregnant. I acknowledge the grief that I felt may not be everyone’s experience, but it’s clearly a reality for many.

Despite this, our employment law doesn’t provide any recognition of the genuine bereavement that miscarriage can cause. The relevant law is in the Holidays Act, which provides three days of bereavement leave where an employee loses immediate family members like a “child” – which depending on interpretation may or may not include a foetus – or one day of bereavement leave at the employer’s discretion in other situations “if the employer accepts” that the employee has suffered a bereavement.

That’s where the Holidays (Bereavement Leave for Miscarriage) Amendment Bill comes in. It’s a member’s bill promoted by Labour MP Ginny Andersen, and it would change the law to provide three days of bereavement leave where an employee, or an employee’s spouse or partner, suffers the “unplanned end” of a “confirmed pregnancy by way of the death of the foetus.”

The bill would put it beyond doubt that a miscarriage or stillbirth (medically different terms depending on the size of the foetus and/or the date of the loss) allows an employee to take the same amount of bereavement leave as for the loss of a child, as a matter of right and not of discretion.

Of course, good employers are going to allow grieving employees to take time off – I was fortunate enough to be given three days’ bereavement leave – and when an employer is using their discretion they have to act “in good faith”. But long experience tell us that not everyone works for a good employer, and it’s important that employment law provides minimum standards of protection for all workers.

The bill would also make it clear that both parents are entitled to bereavement leave when a miscarriage happens. As others have said, and I can confirm, miscarriage affects men too.

I’ve heard some people raising concerns about the additional burden this could put on employers. I’d like to say three things in response. First, I honestly believe this is the decent, human thing to do for people in a nightmare of pain and grief. Some things need to be done simply because it is right to do them, not because they are cost effective. Second, I’m not convinced the additional costs will be overwhelming. A woman who suffers a miscarriage may well need time off to recover, and if she isn’t allowed bereavement leave she’ll need to take that time as sick leave. And speaking now as an employer, it would be unrealistic and unreasonable (to put it politely) to expect a bereaved employee to turn up and work at maximum productivity as though nothing had happened. Lastly, if debate about the bill demonstrates that the costs to employers will be higher than I expect, then we should look at other ways to lower those costs. There’s no reason to treat this law change as the straw that would break the camel’s back when we could remove other straws instead.

We all come to debates like these shaped by our life experiences, and I’ll be honest – our miscarriage was the most devastating thing that’s ever happened to me, and this influences not only my support for the bill but my journey through life. The birth of our fourth, and youngest, child was bittersweet. As I kissed my baby son and welcomed him into our family, both joy and grief welled up inside me – joy and thanksgiving for his birth, grief for the loss of the child I’d never known.

In the last few years I’ve heard many stories similar to ours, and plenty more traumatic, up to and including the tragedy of giving birth to stillborn babies. I can’t deny the profound sense of grief, misery and loss I felt and that I’ve heard from many others. Nor should our law.

Keep going!